Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Decision

[1] Permission to appeal is refused. This appeal will not be going forward.

Overview

[2] The Claimant lives Serbia. In August 2018, she applied for an Old Age Security (OAS) pension claiming that she had lived in Canada from April 1999 to July 2006. The Minister approved her application and granted her a partial pension at 7/40^ths of the full rate. The Minister also determined that, under the terms of the Social Security Agreement between Canada and Serbia, the Claimant was eligible to receive an OAS pension, even though she lived outside Canada.

[3] The Claimant appealed the Minister’s reconsideration decision to the Social Security Tribunal. She argued that the Minister did not take into account her periods of residence and employment in Serbia. She also argued that the Minister should have counted two other periods of Canadian residence—three months in 1992–93 and a month in the fall of 1995.

[4] The Tribunal’s General Division, complying with the Claimant’s expressed wish, conducted a hearing by way of written questions and answers. The General Division then dismissed appeal after determining that the Social Security Agreement between Canada and Serbia did not help the Claimant increase her OAS pension amount. The General Division found that the Claimant’s additional periods in Canada were nothing more than visits—the Claimant might have been present in Canada, but she was not resident in Canada. The General Division also found that, even if the two periods were counted as periods of residence, they still would not have been enough to give her an eighth year of residence.

[5] The Claimant is now asking for permission to appeal the General Division’s decision. She makes the following allegations:

• The General Division unfairly based its decision on a fact sheet to which the Claimant did not have access;
• The General Division committed a jurisdictional error by deciding something it didn’t have to decide;
• The General Division erred in law by failing to take into account the evidence on file, specifically her letter of appeal;
• The General Division erred by assigning the appeal to a member with no legal knowledge; and
• The General Division made important errors of fact by failing to consider crucial evidence, in particular, proof of her work in Croatia.

[6] I have reviewed the General Division’s decision, as well as the law and the evidence it used to reach that decision. I have concluded that the Claimant’s appeal does not have a reasonable chance of success.

Issue

[7] There are four grounds of appeal to the Appeal Division. An applicant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to use them;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 1}

An appeal can proceed only if the Appeal Division first grants leave, or permission, to appeal.^{Footnote 2} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 3} This is a fairly easy test to meet, and it means that a Applicant must present at least one arguable case.^{Footnote 4}

[8] I have to decide whether the Claimant has an arguable case.

Analysis

[9] The Claimant comes to the Appeal Division making some of the same arguments that she made at the General Division. She insists that she is entitled to a higher OAS pension because by virtue of her residence and employment in Serbia and its predecessor state Yugoslavia. She claims that she has additional periods of Canadian residence that should be counted in the calculation of her OAS pension.

[10] I don’t see a reasonable chance of success for these arguments.

[11] To succeed at the Appeal Division, a claimant must do more than simply disagree with the General Division’s decision. A claimant must also identify specific errors that the General Division made in coming to its decision and explain how those errors, if any, fit into the one or more of the four grounds of appeal permitted under the law.

[12] In this case, I don’t see any indication that the General Division committed errors in arriving at its decision. The General Division reviewed the available evidence and made the following findings:

• he Claimant confirmed in writing that she resided in Canada from April 19, 1999 to July 1, 2006, dates that were supported by her Canadian permanent resident card and a multiple entry visa;
• The Claimant’s several months in Canada in 1992–93 and again in 1995 were nothing more than visits, in which she stayed with her daughter but did not establish the kind of lasting ties that are characteristic of residence;
• Even with the benefit of the doubt, the Claimant’s short stays in 1992–93 and 1995 would not have given her an additional year of Canadian residence that would have counted toward her OAS pension; and
• The Social Security Agreement between Canada and Serbia did not allow the Claimant’s years of work and residence in the former Yugoslavia to be used in the calculation of her OAS pension amount. It only allowed those years to be deemed as periods of residence in Canada for the purpose of accumulating the minimum 20 years that would make her eligible to receive their partial OAS pensions outside of Canada.

[13] One of the General Division’s jobs is to establish facts. In doing so, it is entitled to some leeway in how it chooses to weigh the evidence.^{Footnote 5} I see no reason to second-guess the General Division’s conclusion, which it reached after what strikes me as a careful assessment of the evidence and the applicable law.

[14] I will now briefly address some of the Claimant’s specific allegations:

There is no arguable case that the General Division based its decision on information inaccessible to the Claimant

[15] The Claimant says that the General Division relied on a “fast fact” sheet that she never saw. My review of the file indicates that the Clamant is referring to a Service Canada worksheet used to calculate her pension entitlement.^{Footnote 6} In any event, this worksheet was contained in a package of documents that the Tribunal circulated to the parties before the hearing.

There is no arguable case that the General Division committed a jurisdictional error

[16] The Claimant did not specify what issues the General Division decided that were not necessary to decide. However, in my review of the General Division’s decision, I saw nothing irrelevant or gratuitous. From what I can see, the General Division relied only on the evidence and the law that it needed to come to a decision.

There is no arguable case that the General Division failed to take the Claimant’s letter of appeal into account

[17] Decision-makers are presumed to have considered all the evidence before them.^{Footnote 7} In any case, the General Division’s decision clearly indicates that the presiding member considered arguments contained in the Claimant’s appeal letter,^{Footnote 8} even if it didn’t agree with them in the end.

There is no arguable case that the General Division assigned the Claimant’s appeal to a member lacking in legal knowledge

[18] Members of the Tribunal receive training in the areas of law over which it has jurisdiction, as well as other pertinent topics, such as how to assess evidence and how to assess claims in compliance with the rules of procedural fairness. Having reviewed the file, I saw nothing to suggest that the General Division made a legal error.

There is no arguable case that the General Division failed to consider the Claimant’s work in Croatia

[19] As noted, the General Division is presumed to have considered all available evidence.^{Footnote 9} In this case, the General Division was aware that the Claimant lived and worked in the former Yugoslavia, but it found that her time there could only be used to get her over the minimum 20 years that she needed to be paid an OAS pension outside Canada. I don’t see how the General Division erred in making this finding.

Conclusion

[20] The Claimant has not identified any grounds of appeal that have a reasonable chance of success.

[21] Permission to appeal is therefore refused.